Even if President Obama successfully closes Guantanamo, ironically he may leave behind for future presidents a stronger and more reliable law-of-war detention tool for terrorist enemies than he inherited. If the United States finds itself in another war (technically, an “armed conflict”) with a terrorist group, the president will likely have very dependable and well-tested military detention powers in his arsenal, in part thanks to some of the Obama administration’s efforts.
Closing Guantanamo only makes sense in the context of a broader detention policy that is legally, politically, diplomatically, and strategically sustainable. More important than the location of detention is the legal and administrative process of detention.
For many participants in the debate, therefore, “Guantanamo” is shorthand for a broader set of policies. “Closing Guantanamo,” to many advocates, means ending detention-without-trial. “Keeping Guantanamo open,” to many of its proponents, means continuing to use law-of-war authority to hold captured enemy fighters until the end of hostilities, even if that detention occurs at other sites, and to some it means using military rather than civilian trials to prosecute war crimes.
President Obama has charted an ambiguous middle path between these views. On the one hand, he calls Guantanamo a stain on America’s reputation and anathema to our values. On the other hand, he has implied that his pathway to closing it will include at least some continued detention of al Qaeda leaders and fighters who are not prosecutable yet are too dangerous to release, and his administration has staunchly defended its law-of-war detention powers. In some respects, the surprising result of this incongruous path is that law-of-war detention is now a stronger counterterrorism tool under Obama’s leadership than it was under Bush’s.
First, the Obama administration has helped to bolster mainstream moderate political support for some long-term law-of-war detention. Statements like the president's 2009 Archives speech regarding the likely need to detain long-term without trial some dangerous Guantanamo detainees gave political credibility to a position that many of the political left (and some of the libertarian right) had been reluctant to acknowledge. Additional legitimacy of at least some detention of enemy terrorists outside the criminal justice system has come from the Obama administration’s improving periodic review processes and emphasizing their fairness and accuracy; its commitment to detention consistent with the laws of war and prohibitions on torture; and Guantanamo skeptics’ increasing awareness that the alternative to detention in some cases may be lethal force or proxy detention by others.
To close Guantanamo, President Obama may have to go further and endorse or accept additional statutory powers to hold indefinitely some detainees who are moved to the United States. Although not a very principled stance, the Obama administration’s view seems to be that so long as it's only a small number of very dangerous enemy al Qaeda terrorists, it is legitimate to hold them without trial, and the Obama administration has been winning over political allies to this compromise position.
Second, as a legal matter, the Obama administration has adopted and implemented an effective legal strategy that secured strong judicial validation of law-of-war detention, at least when conducted pursuant to a congressional force authorization. A significant move was the Obama administration’s March 2009 brief in habeas litigation, arguing that the 2001 Authorization for the Use of Military Force justified detention of Guantanamo detainees strongly suspected of participating in hostilities on behalf of al Qaeda and its allies, even if they were captured far from a traditional battlefield. The Obama administration’s broad asserted definition of the substantive and geographic scope of detention authority has been accepted by federal courts thanks to effective lawyering and avoiding overreaching. While it decries Guantanamo as contrary to American values, the Obama administration has convinced courts of Guantanamo’s legal validity. It is now even more clear that any future AUMF — which Congress may pass in the event of future conflict with terrorist organizations — presumptively carries with it strong detention powers.
Third, despite its preference for civilian trials, the Obama administration has helped make trials by military commissions a more legitimate instrument for handling some terrorism suspects. Soon after coming to office, the Obama administration not only worked with the Democrat-controlled Congress to reform military commissions rules, but the resulting statute applies beyond just the current armed conflict with al Qaeda to future unprivileged belligerents as well. Although the Obama administration came to office critical of the Bush administration’s approach to military trials, its own legislative fix to this issue helped institutionalize a military detention instrument for future counterterrorism conflicts.
This likely if unintended legacy is partly a product of improvised and incremental moves and reluctance to work with Congress on a comprehensive and forward-looking solution to detention issues. It is partly a product of treating Guantanamo as an inherited problem comprised of Bush administration errors, rather than as a manifestation of a deeper problem: the mismatch of both traditional criminal justice tools and traditional warfare tools with the challenges of fighting transnational terrorist networks. True, criminal justice tools are much more powerful counterterrorism tools than they were before 2001, and efforts by some Obama opponents to close off criminal prosecution options are dangerously misguided. But future presidents are unlikely to rely exclusively on criminal justice for detention in any armed conflicts with terrorist organizations that significantly threaten the United States. The Obama administration has helped lay a strong legal and political foundation for retaining alternative, law-of-war detention.
In sum, even if Obama closes this current Guantanamo, nothing he has so far proposed would prevent creation of a future one. Indeed, barring a surprisingly bold policy reversal, he will likely leave behind some important legal and political building blocks to do so.
